The ‘Prevention and Combating of Hate Crimes and Hate Speech Bill’ has been tabled in parliament, with a number of major changes included since the bill’s first introduction in 2016.
The Hate Speech Bill has come under a large amount of public scrutiny since its introduction, primarily because of the large number of characteristics which are now covered under ‘hate speech’.
Under the new laws, hate speech will be defined as a clear intention to be harmful or to incite harm, or promote or propagate hatred on the basis of these characteristics:
- Ethnic or social origin;
- Gender or gender identity;
- HIV status;
- Migrant or refugee status;
- Sex (which includes intersex or sexual orientation).
“The Constitution allows for the protection of only four specified characteristics – race, ethnicity, religion, gender – but the bill protects seventeen characteristics, including ‘culture’, ‘belief’, ‘occupation’, and ‘gender identity’,” the the Free Market Foundation (FMF) said in an analysis of an earlier version of the bill in 2017.
This has led to a number of civil society groups cautioning that even petty insults could lead to trouble with the law.
Legal researcher at the FMF, Martin van Staden said that because of its broad nature, the legislation will mean that you commit the crime of hate speech by simply insulting someone with the intention to bring them into contempt.
“This could then condemn you to prison for up to three years for a first offence, and for ten years if you do it again,” he said.
“Not only does the text of the bill not make sense, but in fact it defeats itself under the guise of protecting the element of ‘belief’.
“If you say, for instance, ‘Racists are scum and should be ostracised‘, you are committing hate speech according to the bill, as racism is a belief and belief is protected,” he said.
However, the latest version of the Bill (which was tabled in parliament last week), now includes a section of scenarios where the hate speech rules will not apply.
The new section states that the offence of hate speech does not apply in respect, terms of the above characteristics, if it is done in good faith in the course of engagement in:
- Any bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm;
- Any academic or scientific inquiry;
- Fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution;
- The bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm.
While the changes made will likely be welcomed due to the protection that they now offer to people acting under good faith, adding additional tests for what does and does not qualify as ‘hate speech’ is also likely to greatly complicate the offence.
This is important, as someone who assumed that they had protection and said things in good faith (and for those who would be protected under current laws) could still face severe punishments should they be found guilty of the offence of hate speech.
This includes a fine and imprisonment not exceeding three years for first-time offenders, and a fine or imprisonment for a period not exceeding five years for any subsequent offences.